'Stairway to Heaven' Fight Heads to 9th Circuit

Robert Plant and Jimmy Page of Led Zeppelin
Jorgen Angel/Redferns

Robert Plant and Jimmy Page of Led Zeppelin perform live on stage in Copenhagen, Denmark on Feb. 28, 1970.

Same tune, different venue.

The copyright fight over one of rock's most famous tunes is heading to a federal appeals court, as the heir of a songwriter continues his effort to prove Jimmy Page copied the intro of "Stairway to Heaven."

In June, a jury found that Led Zeppelin did not steal "Stairway" from Spirit songwriter Randy Wolfe. While the jury believed Page and singer Robert Plant had heard Wolfe's track "Taurus," it did not find the two songs to be substantially similar.

In a 90-page brief filed Wednesday, attorney Francis Malofiy argues that it is "quite clear" that Page relied on "Taurus" when creating the iconic intro to "Stairway" and that the jury only found the songs were not substantially similar because of evidentiary errors and erroneous instructions.

"The most important of these errors was that the trial court refused to let the jury hear the full and complete composition of 'Taurus' embodied in the sound recordings that Jimmy Page possessed, instead limiting the comparison to an outline of the 'Taurus' composition in the deposit copy lead sheet," writes Malofiy.

These issues are common to cases involving sound recordings created prior to the mid-70s, when the federal government began recognizing copyright protection of the songs themselves instead of only protecting what was written in the sheet music.

In fact, both jury instructions and the issue of using sound recordings versus recreations of sheet music deposited with the U.S. copyright office as evidence are also central to the appeal of the controversial "Blurred Lines" decision — in which the jury found the track infringed on Marvin Gaye's work and awarded his heirs millions.

Attorneys for Robin Thicke and Pharrell Williams argue that "[w]hile correctly excluding the 'Got to Give It Up' sound recording itself, the court erroneously allowed the Gayes’ experts to testify about the sound recording anyway, including by playing their own musical excerpts based on the sound recording."

That appeal even cites the Zeppelin decision, arguing that the court was proper in instructing the jury to disregard musical building blocks that aren't protected by copyright.  

Malofiy doesn't see it that way. He says the court erred by not explaining to the jury that "combinations of otherwise unprotectable elements can themselves be afforded protection."

He also argues that the district court didn't give the jury enough instruction on the inverse ratio rule, which provides that the higher the degree of access to a work that is proven the lower the bar for proving substantial similarity. Writes Malofiy, "Access and substantial similarity are inextricably linked, yet the jury was asked to render a verdict without a key instruction that describes this relationship."  

It's worth noting that Malofiy is currently fighting a suspension of his license to practice law in Pennsylvania. He argues that the judges conspired to suspend him without giving him a fair hearing. The U.S. Supreme Court in January declined to review his case. Whether he is admitted pro hac vice in California to argue this appeal is dependent on his being an attorney in good standing in another jurisdiction.

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